Lead Opinion
{¶ 1} This is an appeal from a decision of the Board of Tax Appeals (“BTA”) in a real property valuation case. The BTA affirmed the reduction ordered by the Hamilton County Board of Revision (“BOR”), which was based on the price paid by Fenco Development Company in a foreclosure sale. The Cincinnati School District Board of Education (“school board”) contends that the sale price was not indicative of value because the foreclosure sale did not qualify as an arm’s-length transaction. Additionally, the school board argues that the corporate taxpayer’s president engaged in the unauthorized practice of law during the BTA hearing and that such conduct raised a jurisdictional bar to the BTA’s decision.
{¶ 2} On the jurisdictional issue, we disagree with the school board. Once the filing of a valid complaint or notice of appeal vests jurisdiction in the board of revision or the BTA, a later instance of the unauthorized practice of law during the proceedings does not retroactively divest the tribunal of jurisdiction. Accordingly, we need not decide whether the unauthorized practice of law occurred in this case, because that fact is without jurisdictional consequence.
{¶ 3} We do agree, however, that the record shows a foreclosure sale that does not establish the property’s value pursuant to R.C. 5713.03. See R.C. 5713.04 (“The price for which such real property would sell at auction or forced sale shall not be taken as the criterion of its value”). A foreclosure sale usually does not qualify as an arm’s-length transaction because the sale occurs under the compulsion that the property be liquidated for the benefit of creditors. Moreover, the BTA’s finding in this case that the foreclosure sale was voluntary is not supported by reliable and probative evidence, and because the record does not furnish a basis on which the BTA could perform an independent valuation, we reverse the decision of the BTA and reinstate the auditor’s valuation of the property for tax purposes.
{¶ 4} On March 30, 2007, Craig Fennel, president of Fenco Development Company, an S corporation, filed a complaint on behalf of the company against the auditor’s valuation of a 30,600-square-foot apartment building that the company had acquired as of February 27, 2006. The auditor had assigned a true value of $479,600 for tax year 2006; Fenco claimed that the property’s value was equal to the sale price of $135,000, the price Fenco paid the United States Department of Housing and Urban Development (“HUD”) at a foreclosure auction. The BOR held a hearing on September 10, 2007, at which Fennel testified.
{¶ 5} Fennel stated that the property had been vacant for two years. Although the property had been in contract shortly before his company’s purchase, the winning bidder could not close. Fennel outbid two other auction bidders at $135,000, and at the hearing, he offered the HUD settlement statement and a document titled “Terms and Requirements of Foreclosure Sale- — -Acknowledgment by Bidder.” Those documents and the conveyance-fee statement established the sale price in the context of a foreclosure sale conducted by HUD. In addition to the basic documents, Fennel submitted photographs indicating the run-down condition of the property. He testified that he was holding the property on a speculative basis, waiting for other properties to be improved before improving his own.
{¶ 6} In contrast, the auditor submitted a “Real Estate Department Report” prepared by one of its staff appraisers, opining that “no sufficient claim or documentation has been presented to reduce the subject property to the $135,000 sought by the property owner.” Although the appraiser agreed that the condition of the property was “deplorable,” she testified at the BOR hearing that the conveyance-fee statement indicated a foreclosure sale, “which does not indicate a market sale.”
{¶ 7} The BOR characterized the evidence as showing a run-down property that had proved difficult to sell through auction, concluding that the sale price indicated the value of the property under the circumstances.
{¶ 8} The school board appealed to the BTA, which held its hearing on March 4, 2009. Fennel appeared and presented four exhibits: photographs documenting the run-down condition of the property; the auditor’s notification for tax year 2008 updating the property value to $136,350 from $135,000; and two HUD settlement statements, the first relating to an attempted sale for $506,000, and the second relating to Fenco Development Company’s purchase in February 2006.
{¶ 9} Fennel testified that the first settlement statement showed an attempted sale for $506,000, and he explained that the photographs documented the build
{¶ 10} In its decision, the BTA noted that an arm’s-length sale must be voluntary and also that R.C. 5713.04 expressly prohibits viewing auction or forced-sale prices as the criterion of value for the property. But the BTA found that in a number of its own cases, the “sale prices of parcels sold at auction are nevertheless the best evidence of value when all of the elements of an arm’s-length sale are present.” Cincinnati School Dist. Bd. of Edn. v. Hamilton Cty. Bd. of Revision (July 7, 2009), BTA No. 2007-A-1196,
{¶ 11} The school board has appealed, and we now reverse.
Analysis
{¶ 12} The BTA is responsible for determining factual issues, but we “ ‘will not hesitate to reverse a BTA decision that is based on an incorrect legal conclusion.’ ” Satullo v. Wilkins,
The BTA and the BOR had jurisdiction to render their decisions in this case
{¶ 13} First, we address the school board’s contention that a jurisdictional impediment arose in the context of the BTA hearing. Jurisdictional objections typically raise an issue of law for resolution by the court. See Toledo v. Levin,
{¶ 14} At the outset, Fennel did prepare and submit the valuation complaint as an officer of the corporate owner, an activity that the school board concedes is permissible pursuant to Dayton Supply & Tool Co., Inc. v. Montgomery Cty. Bd.
{¶ 15} We find it unnecessary to determine whether Fennel’s actions at the BTA hearing constituted the unauthorized practice of law in this context. That is so because the school board admits that Fennel could validly file the valuation complaint, and that filing established the jurisdiction of the BOR to consider and rule upon the complaint. When the school board filed its notice of appeal at the BTA, legal counsel prepared and submitted the notice of appeal, and that event invoked the BTA’s jurisdiction to review the BOR decision and issue a merits decision of its own.
{¶ 16} The school board advances the proposition that when someone engages in the unauthorized practice of law at a hearing, that act divests the tribunal of its jurisdiction. But the school board does not cite and we do not find any authority to support that proposition. Once jurisdiction has been vested in an administrative tribunal by the proper filing of a complaint or notice of appeal, a later act constituting the unauthorized practice of law will not retroactively divest that tribunal of jurisdiction. Although we discussed the scope of a corporate officer’s possible activities at a hearing in Dayton Supply & Tool,
{¶ 17} For the foregoing reasons, we conclude that the school board has shown no basis for finding an absence of jurisdiction at the BTA. We therefore turn to the merits issue.
{¶ 18} R.C. 5713.03 states that the auditor “shall consider the sale price of [any] tract, lot, or parcel to be the true value for taxation purposes” if the sale was “an arm’s length sale” that occurred “within a reasonable length of time, either before or after the tax lien date.” We have held that this provision constitutes a statutory mandate that precludes the use of appraisal valuations when a sale price has been offered that is both recent and at arm’s length. Berea City School Dist. Bd. of Edn. v. Cuyahoga Cty. Bd. of Revision,
{¶ 19} On the other hand, the “price for which such real property would sell at auction or forced sale shall not be taken as the criterion of its value.” R.C. 5713.04. The reference to “forced sale” in this statutory pronouncement codifies the basic proposition that a sale must be voluntary from the standpoint of both seller and buyer in order to qualify as an arm’s-length transaction. See Walters v. Knox Cty. Bd. of Revision (1989),
{¶ 20} In deciding the present case, the BTA applied R.C. 5713.03’s mandate that the sale price equals the true value of the property despite the school board’s objections. Specifically, the BTA concluded, “[B]ased on the evidence before us, in conjunction with the property owner’s representative’s credible testimony about such sale,” the “sale of the subject property, at auction, represented an arm’s-length transaction upon which the BOR properly relied in valuing the property for tax year 2006.” Cincinnati School Dist. Bd. of Edn., BTA No. 2007-A-1196,
{¶ 21} It is undisputed and fully documented that this sale was a foreclosure sale under the auspices of HUD. As a general matter, foreclosure sales reflect a strong impetus to liquidate the property in order to obtain cash to satisfy one or more creditors. On the one hand, this motivation is generally recognized as constituting a type of duress — though the compulsion to sell quickly may be
{¶ 22} More generally, the circumstances of a foreclosure sale deprive the sale of its arm’s-length character for purposes of R.C. 5713.03 because the motivations of the parties to the sale, particularly the seller, do not qualify as typical of the motivations of other persons in the marketplace. See AEI Net Lease Income & Growth Fund v. Erie Cty. Bd. of Revision,
{¶ 23} In spite of the foregoing considerations, the BTA expressed its view that the “public sale was carried out voluntarily by the seller.” Cincinnati School Dist. Bd. of Edn., BTA No. 2007-A-1196,
{¶ 24} We hold that the record does not contain reliable and probative evidence to support the BTA’s finding that HUD’s sale of the property at issue qualified as “voluntary.” Four factors compel us to draw that conclusion.
{¶ 25} First, the documentation of the sale on its face refers to the sale as a “foreclosure.” Such a sale falls under the rubric of a “forced sale” that may not be regarded as the “criterion of * * * value” of the property pursuant to R.C. 5713.04. See RLG Properties, L.L.C.,
{¶ 26} Second, the BTA did not specifically state what evidence it relied upon in finding that the HUD sale was voluntary. The evidence regarding the exposure of the property to the public and the competitive bidding process did not rebut the usual presumption that a foreclosure sale does not furnish the “criterion of * * * value” for the property. R.C. 5713.04. Specifically, the evidence shows that HUD apparently contracted to sell the property to a previous bidder for $506,000, and when that sale fell through for unexplained reasons, HUD accepted a $135,000 bid within two months of the failure of the earlier sale. These circumstances fall well short of proving that HUD acted in a voluntary manner in disposing of the property. Indeed, the best that can be said for the owner’s position is that the particular circumstances of the present case are ambiguous with respect to the character of the sale as a forced sale.
{¶ 27} Third, the BTA failed to explain how the HUD sale in the present case differs from the HUD sales in earlier decisions, all of which the board found did not indicate the value of the property. See Helfrich v. Licking Cty. Bd. of Revision (July 29, 2008), BTA No. 2007-N-414,
{¶ 28} Specifically, the BTA in Helfrich described HUD transactions in the following terms: the federal agency serves as a “guarantor of loans which are made by a mortgage lending institution to a mortgagor property owner,” so that when the lending institution forecloses on the defaulting owner, the lender “obtains title to the property, often as a result of judicial sale,” after which the lender transfers title to HUD “for the amount of the Guarantee.” Id. at *3, quoting Matic v. Mahoning Cty. Bd. of Revision (Dec. 11, 1992), BTA No. 1990-H-1114,
{¶ 29} In those earlier cases, the BTA found that the recited circumstances precluded considering a HUD sale as “voluntary as that term is used in Walters,” inasmuch as HUD, “not ordinarily a property owner,” obtains the property “under duress, and obviously seeks to divest itself of the property for at least the amount of its guarantee.” Matic, BTA No. 90-H-1114,
The fact that a foreclosure sale involves an auction does not make the sale an arm’s-length transaction
{¶ 31} Citing Walters,
{¶ 32} Walters does not control this case. Walters involved an auction sale but not a foreclosure auction sale. Walters,
{¶ 33} Moreover, the BTA’s reliance on its own decisions addressing auction sales is unpersuasive, because the cases do not involve foreclosure auctions, and because the BTA fails to explain why it decided the HUD-sale cases differently in light of the fact that they too involve auction sales. See Matic, BTA No. 90-H-1114,
{¶ 34} To sum up, the BTA decision must be reversed because the sale of the property at issue by HUD to Fenco Development Company constituted a foreclosure sale, which is presumptively not at arm’s length and which has not been shown to be voluntary.
Conclusion
{¶ 35} For the foregoing reasons, the BOR and the BTA erred by adopting the sale price as the value of the property. Apart from the sale price, the record did not contain sufficient evidence for the BTA to perform an independent valuation of the property. Accordingly, we reverse the decision of the BTA and thereby reinstate the auditor’s original valuation of the property for tax year 2006.
Decision reversed.
Notes
. It is worth noting that Walters reserved the question whether the mandatory language of R.C. 5713.04 allowed any auction sale to qualify as an arm’s-length transaction. Walters,
. See Colonial Village Ltd. v. Washington Cty. Bd. of Revision,
Concurrence Opinion
concurring in part and dissenting in part.
{¶ 36} The majority opinion states, “A foreclosure sale usually does not qualify as an arm’s-length transaction because the sale occurs under the compulsion that the property be liquidated for the benefit of creditors. Moreover, the finding of the Board of Tax Appeals (‘BTA’) in this case that the foreclosure sale was voluntary is not supported by reliable and probative evidence * *
{¶ 37} I disagree with this conclusion for two simple reasons. First, the foreclosing party is the United States Department of Housing and Urban Development, a giant federal entity that cannot be compelled to do anything. If it sold a property at auction, it did so because it wanted to, not because it was forced to. Second, the BTA’s decision was supported by the unrebutted testimo
{¶ 38} Furthermore, the BTA stated that the board of education in this case “presented no evidence or witnesses in support of its position that the BOR [Board of Revision] had improperly reduced the [property’s] valuation.” This lack of support for the BOR’s position is evidenced by the county’s own appraiser, who stated, “[T]he condition of the property is deplorable * * *. I do believe that our current value is too high.”
{¶ 39} The BOR reviewed all the facts before it and concluded that the sale price was a true indication of value, even though the property had been sold at auction. Based on the record before it, the BTA upheld the valuation, concluding that the auction had been an arm’s-length transaction. I agree that, under the circumstances of this case, the auction was an arm’s-length transaction. I would affirm the decision of the Board of Tax Appeals.